Order Sheet
IN THE HIGH COURT
OF SINDH, BENCH AT SUKKUR
Revision Application No. S – 198 of 2011
[Abdul Majeed v. Amjad Ali]
Applicant : Abdul Majeed through Mr. Sarfraz A. Akhund, Advocate.
Respondent : Amjad
Ali through Mr. A.M. Mobeen Khan, Advocate.
Dates of hearing : 24-08-2020
& 15-09-2020
Date of order : 14-10-2020
O R D E R
Adnan
Iqbal Chaudhry J. –
F.C.
Suit No. 34/2007 filed by the Applicant (Plaintiff) for pre-emption was
dismissed by the learned II-Senior Civil Judge, Sukkur by judgment and decree
dated 01-04-2009 and 04-04-2009 respectively; and the Applicant’s Civil Appeal No.
32/2009 was also dismissed by the learned III-Additional District Judge, Sukkur
by judgment and decree dated 11-10-2011; hence this revision application.
2. The
property pre-empted by the Plaintiff (Applicant) was a shop which had been
purchased by the Defendant (Respondent) by sale deed dated 10-10-2006. The
Plaintiff claimed that he was shafi-i-jar as
he was owner of an adjoining shop at the back of the suit shop; that he came to
know of the sale on 15-04-2007 and immediately made both the talab-i-mowasibat and the talab-i-ishaad before the Defendant in the presence of witnesses, namely Abdul Hameed
and Illahi Bux.
The
Defendant pleaded that he was not a stranger and he too was in occupation of a
shop that was adjoining the suit shop. He denied that the Plaintiff had ever
invoked the right of pre-emption and denied that the Plaintiff had made the talabs as alleged. On his
examination-in-chief the Defendant also took the stance that he had sold 50% of
the suit shop to his father by a sale deed dated 23-05-2007. Since such transfer
was made pending suit and apparently to defeat the suit, the appellate court
observed that nothing turned on such transfer.
3. Heard
the learned counsel and perused the record.
4. Both
the Courts below held that the suit shop being commercial property, was exempt
from pre-emption; and doing so, reliance was placed on a judgment by a learned
single Judge of this Court in M.R. Sons
v. Junaid Associates (Pvt.) Ltd. (PLD 1990 Karachi 387), and on an
observation made in the separate note of one of the three learned Judges of the
Honourable Supreme Court while granting leave to appeal in Abdul Rahim Khan v. Asif Ali Khan (PLD 2001 SC 137). It appears
that both the trial court and the appellate court were not properly assisted in
that regard, in that, it has been held by the Supreme Court in Government of NWFP v. Said Kamal Shah
(PLD 1986 SC 360) that a shop which is not waqf property or Government
property, is not exempt from pre-emption. Again, in Muhammad Shabbir Ahmad Khan v. Government of Punjab (PLD 1994 SC 1)
it was held that a property in an urban area is not exempt from pre-emption.
The decisions in Said Kamal Shah and Muhammad Shabbir Ahmad Khan are by
larger Benches of the Shariat Appellate Bench of the Supreme Court, whereas the
case reported at PLD 2001 SC 137 was only a leave granting order. Therefore, I
agree with the learned counsel for the Applicant that the observation in the
impugned judgments that a commercial property is exempt for pre-emption, is
erroneous. But then, the suit was not dismissed on that score alone. There is
also a concurrent finding of fact that the Plaintiff had not made the talab-i-mowasibat immediately on
acquiring knowledge of the sale which was fatal to the suit.
5. The
case set-up in the plaint was that on 15-04-2007, the Plaintiff, along with
Abdul Hameed and Illahi Bux, were standing in front of the suit shop when they
saw the Defendant open its shutter; that since the Defendant was a stranger,
the Plaintiff asked him who he was, on which the Defendant informed that he had
purchased the suit shop for Rs. 150,000/- by sale deed dated 10-10-2006; and
that is when the Plaintiff made the first demand of talab-i-mowasibat followed by the second demand of talab-i-ishaad in the presence of the said witnesses. However,
the deposition of the Plaintiff was that:
“On 15-04-2007 I came to know about the bargain. I came to my shop.
Thereafter, I with my brother Abdul Hameed, Illahi Bux accompanying, went to
see the suit shop in order to visit and purchase. So when we went on shop,
in our presence Amjad Ali came and got opened the lock of the door of shop and
informed us that he has purchased the same from Zahoor Ahmed on the
consideration of Rs. 150,000/-. On that, I in presence of witnesses made
request Amjad Ali that I have got right over the shop to purchase and I am
ready to pay the sale consideration of Rs. 150,000/- but he refused. Second
time I made demand in presence of witness Abdul Hameed and Illahi Bux that I am
ready to purchase the shop and pay sale amount but he refused.”
The deposition of PW Illahi Bux was also that:
“On 15-04-2007, I and co-witness Abdul Hameed were present on the shop
of Abdul Majeed. Abdul Majeed requested us to accompany to visit a shop
adjacent to his shop with intention to purchase the same.”
6. Therefore,
contrary to the case set-up, the evidence was that on 15-04-2007 the Plaintiff
had gone over to the suit shop with the intent to invoke the right of
pre-emption. That being so, it was manifest that the Plaintiff had prior knowledge
of the sale of the suit shop in favor of the Defendant; and then, the talab-i-mowasibat
allegedly made by the Plaintiff on meeting the Defendant afterwards at the suit
shop, cannot be said to be a jumping demand[1]
made immediately on acquiring knowledge of the sale. It is settled law that if talab-i-mowasibat
is not made immediately on acquiring knowledge of the sale, then it will be
deemed that the shaafi has forgone his right of pre-emption.[2] In
Rana
Muhammad Tufail v. Munir Ahmed (PLD 2001 SC 13), a delay
of 4 hours in making the talab-i-mowasibat
was found fatal to the suit. It
is also settled law that the right of pre-emption being a feeble right, the
pre-emptor is to be put to strict proof as to the making and the observance of
the requisite talabs.[3]
7. In view of the foregoing, since the
evidence shows that the talab-i-mowasibat,
if made at all, was made with an unexplained delay, the impugned judgment and
decree do not call for interference. Consequently, this revision application is
dismissed.
J U D G E